Warren v. Stephens, Director TDCJ-CID

Filing 31

Opinion and Order. For the reasons discussed herein, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. A certificate of appealability is DENIED. (Ordered by Judge Reed C O'Connor on 9/26/2016) (trt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JAMES WENDELL WARREN,
Petitioner,
v.
LORIE DAVIS, Director,1
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 4:15-CV-055-O

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by Petitioner, James Wendell Warren, a state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of
TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has
concluded that the petition should be denied.
I. BACKGROUND
Petitioner was indicted in Tarrant County, Texas, Case No. 1241116D, with burglary of a
habitation with intent to commit theft. Adm. R., State Habeas R. 160, ECF No. 19-21. The
indictment also included a habitual-offender notice. Id. A jury found Petitioner guilty of the offense
and, after preparation of a presentence investigation report, Petitioner pleaded true to the habitualoffender allegation and the trial court assessed his punishment at 35 years’ confinement. Id. at 162
& Clerk’s R. 137, ECF No. 19-13. On direct appeal, Petitioner challenged his sentence, but the

1

Effective May 4, 2016, Lorie Davis replaced Williams Stephens as director of the Correctional Institutions
Division of the Texas Department of Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.

Second Court of Appeals of Texas affirmed the trial court’s judgment and the Texas Court of
Criminal Appeals refused Petitioner’s petition for discretionary review. Id. at 171 & Docket Sheet,
ECF No. 19-2. Petitioner also filed a state habeas application challenging both his conviction and
sentence, which was denied by the Texas Court of Criminal Appeals without written order on the
findings of the trial court. Id., “Action Taken”, ECF No. 19-19.
At trial, Sean Sterling testified that on the morning of May 22, 2011, Petitioner knocked on
his door and asked for a Mr. Larson at 42 Glassboro Circle and stated that he was there to work on
the gutters. Sterling lived in the 2500 block of Glassboro Circle and believed Petitioner was just
“making stuff up.” Id., Reporter’s R. 17-19, ECF No. 19-9. Petitioner told Sterling that the
paperwork was in the car and he would get it. Id. at 19. Sterling went to his bedroom window and
saw Petitioner get into a white “sedan type car,” instead of a work truck, with another male in it. Id.
at 19, 21. Suspicious, Sterling and his friend decided to follow the white sedan and see what was
happening. Id. at 20. Sterling turned the corner and saw the white sedan stopped at a second house
and he called 911. Id. He saw Petitioner and the other male get into the white sedan and leave.
Sterling continued to follow them around the neighborhood. The white sedan returned to the second
house and later Sterling observed the two carry a flat-screen TV and a “pillowcase full of stuff” to
the car. Id. at 23-24. Sterling continued to follow them and give updates to the police dispatcher
regarding the white sedan and their location and he provided the license plate for the white sedan.
Id. at 25. Sterling also informed the dispatcher that he would put on his “flashers” to assist law
enforcement in finding them. Officer Jakisha Jones testified that there had been a rash of home
burglaries in the area and that based on Sterling’s call to the dispatcher, she initiated a “felony stop”
after spotting Sterling’s car and the white sedan. Id. at 41, 48-57, 77. Officer Jones and fellow
2

Officer Mike Smith, who was following Officer Jones in another squad car, drew their service
weapons, directed the two men to get out of the car and down on their knees, and handcuffed them,
while a more thorough investigation could be conducted. Id. at 84-86. Officer Jones observed a large
TV and other items in the back seat of the car and Sterling identified the two as the men he saw
committing the burglary. Id. at 33-34, 58, 106-08. When officers went to the house, they discovered
that the glass pane closest to the lock on the door had been broken. Id. at 117. Items taken from the
house, including a 52-inch Sony LCD television, two Sony Blu-ray DVD players, a Sony laptop, a
men’s diamond bracelet, an iPod player, a jewelry box, a hunting knife, a LED flashlight, a college
ring, and a nine-millimeter Beretta semiautomatic handgun and three full clips were found in the
white sedan and later returned to the homeowner. Id. at 114-20.
II. ISSUES
In three grounds, Petitioner claims the state habeas court’s factual findings and/or
conclusions of law on state habeas review are contrary to or an unreasonable application of Supreme
Court law. Pet. 6-7, ECF No. 3. More specifically, in grounds one and two, Petitioner appears to
challenge the state court’s determination that he waived his Fourth and Fifth Amendment claims
regarding the legality of the traffic stop and the failure of the police to administer Miranda warnings.
Pet’r’s Mem. 6-9, ECF No. 4. In his third ground, Petitioner appears to challenge the state habeas
court’s determination that he asked the trial court not to hear and rule on his second pro se motion
to suppress. Pet. 7, ECF No. 3; Pet’r’s Mem. 9, ECF No. 4.
III. RULE 5 STATEMENT
Respondent believes that the petition is neither barred by the statute of limitations nor
successive and that Petitioner has sufficiently exhausted the claims in state court. Resp’t’s Ans. 4,
3

ECF No. 16.
IV. DISCUSSION
A. Procedural Default
Under his first and second grounds, Petitioner asserts that the state habeas court’s decision
that he forfeited his Fourth Amendment and Miranda claims is contrary to or an unreasonable
application of Supreme Court law. Pet. 6, ECF No. 3; Pet’r’s Mem. 6-7. In his state habeas
application, Petitioner claimed that the traffic stop, detention and arrest were unlawful and that
Officer Jones failed to give him the Miranda warnings during his arrest. Adm. R., WR-54,638-03
Writ, 7-8, ECF No. 19-21. The state court found that Petitioner did not raise the issues on direct
appeal. Id. at 129. Citing to Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989), in
which the Texas Court of Criminal Appeals explains its adherence to the contemporary-objection
rule, the state habeas court concluded that—
[a]ppellate courts will not consider any error which counsel for the accused could
have called, but did not call, to the attention of the trial court at the time when such
error could have been avoided or corrected by the trial court.
Adm. R., WR-54,638-03 Writ, 138, ECF No. 19-21. In turn, the Texas Court of Criminal Appeals
adopted the habeas court’s findings and denied Petitioner’s state habeas application without written
order.
The Fifth Circuit has recognized that the Texas contemporaneous-objection rule, which
requires a timely objection to preserve error for appeal, is strictly and regularly applied, and is
therefore an adequate state procedural bar to federal review. Dowthitt v. Johnson, 230 F.3d 733, 752
(5th Cir. 2000). In other words, when a state law default prevents the state court from reaching the
merits of a federal claim, that claim can ordinarily not be reviewed in federal court. Ylst v.
4

Nunnemaker, 501 U.S. 797, 801 (1991); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977); Murray
v. Carrier, 477 U.S. 478, 485-492 (1986). In such cases, federal habeas review of the claim is
barred unless a petitioner can demonstrate “cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the claims will result in
a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). “This
doctrine ensures that federal courts give proper respect to state procedural rules.” Glover v. Cain,
128 F.3d 900, 902 (5th Cir. 1997).
Here, the decision by the state habeas court is the “last reasoned opinion,” which rested its
judgment on the procedural default. Ylst, 501 U.S. at 802-04. Thus, this Court may presume that
the Texas Court of Criminal Appeals’s denial rests upon the same ground. Id. at 803. Accordingly,
Petitioner’s first and second grounds are barred under the doctrine of procedural default unless he
can show that he fits within an exception to that rule. Id. Toward that end, Petitioner raises three
“legal causes” for his failure to preserve the claims: (1) ineffective assistance of trial and/or
appellate counsel; (2) the false testimony by Officer Jones; and (3) the state’s failure to correct the
false testimony. Pet’r’s Traverse 5-6, ECF No. 23.
To the extent Petitioner claims trial and/or appellate counsel was ineffective by failing to
raise the issues, he fails to establish cause and prejudice. The record reflects that Petitioner filed a
plethora of pro se motions, including two pro se motions to suppress. Adm. R., Clerk’s R. 27, 55.
During a pretrial hearing, Petitioner expressly declined “to proceed” with the first motion. Id.,
Reporter’s R., vol. 3 at 7-8. However, it does not appear that the trial court ruled on the second pro
se motion, which sought suppression of all evidence gathered as a result of the illegal stop,
detention and arrest. Petitioner complained in his state habeas application, among other things, that
5

trial counsel was ineffective by failing to assert his pro se motions to suppress and his Miranda
claim. Counsel responded as follows:
I did not assert Mr. Warren’s pro-se motions to suppress because while they
may be correct statements of the law on warrantless detentions, searches and arrests,
there were no facts revealed in my investigation of the case or discussions with Mr.
Warren to support the motion to suppress. The arresting officer (Jones) was
responding to a call from a civilian witness (Sterling) who was actively following
a car with two men inside he had just witnessed burglarize a house. The officer had
reasonable suspicion to stop the car described in the burglary. Inside the car which
Mr. Warren was driving was a television and a white pillowcase as had been
described by witness Sterling as having been taken out of the burglarized home.
This was reason for further investigation. Mr. Sterling arrived at the scene of the
stop and positively identified the suspects and the car involved in the burglary; thus
justifying further investigative detention. The home owner was contacted and
shortly thereafter identified the items inside Mr. Warren[’]s car were those taken
from his home without consent. All of these facts justified the stop, detention and
subsequent arrest of Mr. Warren without a warrant. My strategy at the time was that
I was certain that the trial judge would not have suppressed any evidence of the
arrest based on these facts and that the better strategy was to argue factual
inconsistencies to the jury.
...
I didn’t object to any issues regarding Miranda because the state did not use
any statements by Mr. Warren at the time of his detention or arrest against him at
trial.
Id., WR-54,638-03 Writ 81-83, ECF No. 19-21.
Appellate counsel testified in his affidavit that he argued two points on appeal and, after
reviewing the entire record, he found no other arguable points that he felt had any merit. Id. at 87.
A criminal defendant has a constitutional right to the effective assistance of counsel at trial
and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95
(1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738,
744 (1967). An ineffective assistance claim is governed by the familiar standard set forth in

6

Strickland v. Washington. 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir.
2001) (applying the Strickland standard to ineffective assistance claims against appellate counsel).
To establish ineffective assistance of counsel a petitioner must show (1) that counsel’s performance
fell below an objective standard of reasonableness, and (2) that but for counsel’s deficient
performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688.
Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697.
In applying this standard, a court must indulge a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 68889. Judicial scrutiny of counsel’s performance must be highly deferential and every effort must be
made to eliminate the distorting effects of hindsight. Id. at 689. The Supreme Court recently
emphasized in Harrington v. Richter that—
[t]he pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that the inquiry, the analysis
would be no different than if, for example, this Court were adjudicating a Strickland
claim on direct review of a criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that the two questions are
different. For purposes of § 2254(d)(1), “an unreasonable application of federal law
is different from an incorrect application of federal law.” A state court must be
granted a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.
562 U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in original)).
Accordingly, it is necessary only to determine whether the state courts’ adjudication of Petitioner’s
ineffective assistance claims was contrary to or an objectively unreasonable application of
Strickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson v. Dretke, 426 F.3d 306, 315-17
(5th Cir. 2005); Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).

7

The state habeas judge, who also presided over Petitioner’s trial, adopted the state’s
proposed findings of fact, which were consistent with counsel’s affidavits, and applying the
Strickland standard, concluded that trial and appellate counsel’s decision to not present Petitioner’s
motions to suppress and to not make a Miranda argument were the result of reasonable trial and
appellate strategy. Id. at 139-40, 143. In turn, the Texas Court of Criminal Appeals denied habeas
relief based on the trial court’s findings. Deferring to the state habeas court’s findings, absent clear
and convincing evidence in rebuttal, and assuming the Texas Court of Criminal Appeals applied
Strickland to Petitioner’s ineffective assistance claims, the state courts’ application of Strickland
was not unreasonable.
Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, a temporary investigative stop (a
seizure of the person) is proper if the stop is based on reasonable suspicion “that criminal activity
may be afoot.” United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) (quoting Terry, 392 U.S.
at 30). [U]sing some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie
on the ground, and handcuffing a suspect—whether singly or in combination—do not automatically
convert an investigatory detention into an arrest requiring probable cause.” United States v. Sanders,
994 F.2d 200, 206-07 (5th Cir.), cert. denied, 510 U.S. 955 (1993).
Clearly, Officers Jones and Smith had reasonable suspicion to conduct the stop and
detention of Petitioner and his companion in light of the facts and circumstances of this case. See
United States v. Hopes, 286 F.3d 788, 789-90 (5th Cir. 2002) (citing Alabama v. White, 496 U.S.
325 (1990)). The Court cannot find fault in trial counsel’s decision not to urge futile objections as
part of his trial strategy. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). Similarly,
appellate counsel is not deficient in failing to present frivolous or meritless issues on appeal.
8

Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994). Thus, trial counsel’s failure to raise
contemporaneous objections and appellate counsel’s failure to the raise the issues on appeal do not
constitute ineffective assistance so as to establish cause and prejudice.
To the extent Petitioner claims the default should be excused because of Officer Jones’s
false testimony and the state’s failure to correct the testimony, he also fails to establish cause and
prejudice. Petitioner complains of the officer’s testimony that she did not have to read Petitioner
his Miranda warnings because she did not ask him detailed questions about the specific alleged
offense. Pet’r’s Traverse 5-7, ECF No. 23; Adm. R., Reporter’s R., vol. 4, 85, ECF No. 19-9.
According to Petitioner, “[t]his admission by Officer Jones is constitutionally not true becouse [sic]
at the time [he] was handcuffed and under arrest.” Id. at 5. Petitioner’s assertion does not explain
the failure to present his Miranda claim earlier or actual prejudice. Further, there is no evidence that
Officer Jones testified falsely or that the state had good reason to believe her testimony was false
and the state made no attempt to introduce at any stage of the criminal proceedings any statement
made by Petitioner to the officers. Even if Petitioner could show a Miranda violation, the Supreme
Court has rejected the application of the “fruits of the poisonous tree” doctrine to violations of
Miranda. See Oregon v. Elstad, 470 U.S. 298, 309 (1985). In summary, Petitioner has failed to
demonstrate cause and prejudice to excuse the procedural default of grounds one and two in state
court or that a manifest injustice will result if this Court does not review the claims. Therefore, the
claims are procedurally barred from the Court’s review.
C. TRIAL COURT DECEIT
In his third ground, Petitioner claims the state habeas court’s decision to deny his Fourth
Amendment claim was based on the trial court’s “deciet.” Pet. 7, ECF No. 3. He directs the Court
9

to the state habeas court’s conclusion that “[b]ecause Applicant asked the trial court not to proceed
on his [second pro se] motion to suppress, he forfeited his right to complain about the stop of his
vehicle.” Adm. R., WR-54,638-03, ECF No. 19-21. According to Petitioner, [t]he record shows that
the trial court acknowledge[d] the second ‘other’ motion, but failed to ask petitioner did he wish
to be heard on the ‘other’ motion to suppress.” Pet. 7, ECF No. 3. Even if the habeas court’s finding
is incorrect, arguably Petitioner abandoned his second pro se motion by failing to call the court’s
attention to the fact that it remained unresolved. In any event, there is no indication that the motion
was ever adopted by Petitioner’s trial counsel. Although a defendant has a constitutional right to
represent himself, there is no right to hybrid representation. See United States v. Mikolajczyk, 137
F.3d 237, 246 (5th Cir. 1998). Under these circumstances, the trial court was not required to rule
on his pro se motions.
V. CONCLUSION
For the reasons discussed herein, Petitioner’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED. A certificate of appealability is DENIED.
SO ORDERED on this 26th day of September, 2016.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

10